Andrews

Plaintiff appeals from a judgment of the superior court of the city and county of San Francisco abating this action on the ground that when it was commenced there was another action pending in the same jurisdiction, based upon the same cause and contested by the same parties in the trial court, the prior action being numbered 146,986 and that under discussion 146,989. There is no question that the complaint in action 146,986 was filed with the county clerk of the city and county of San Francisco prior to the filing of the complaint in action 146,989, both filings being made upon the same day and within a period of time not exceeding one hour of that day.

Both actions are in partition for the purpose of partitioning or selling seventeen parcels of land of a value admitted to be in excess of $1,000,000 situated in several counties of California, which were formerly owned by one James K. Prior, Sr., who died testate on March 22, 1905. On August 3, 1906, the superior court of the city and county of San Francisco distributed the interest of James K. Prior, Sr., in the properties herein involved to the surviving wife of deceased, Mary Prior, and certain sons and daughters of deceased,…